Citation Nr: 21038229 Decision Date: 06/23/21 Archive Date: 06/23/21 DOCKET NO. 15-16 192 DATE: June 23, 2021 ORDER Entitlement to service connection for hypertension, to include as secondary to herbicide agent exposure and/or service-connected diabetes with erectile dysfunction (diabetes) is denied. FINDING OF FACT The Veteran's hypertension was not incurred in, and is not otherwise etiologically related to, his active service, nor is it caused or aggravated by his service-connected diabetes. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5103; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from August 1967 to March 1971. He also had a period of active duty for training (ACDUTRA) from June 1992 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript is of record. The Board remanded the claim on appeal in June 2019 and November 2020 for additional development. The Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for hypertension, to include as secondary to herbicide agent exposure and/or service-connected diabetes. The Veteran contends that his hypertension is either directly related to herbicide exposure in service or secondary to his service-connected diabetes. For the reasons that follow, the Board finds that service connection is not warranted Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be established for chronic diseases, to include hypertension, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). In addition, service connection may be established on a presumptive basis for certain diseases resulting from exposure to herbicide agents, such as Agent Orange, if a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, absent affirmative evidence to establish that the Veteran was not exposed to such herbicide agent during that service. See 38 C.F.R. §§ 3.307(a)(6)(iii). If a Veteran is presumably exposed to an herbicide agent, then there is a presumption of service connection for certain enumerated diseases. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a) and 3.309(e). Hypertension is not included in such enumerated diseases. In addition to exposure within the Republic of Vietnam, herbicide exposure has been noted to have occurred in various places, including Thailand. Current VA policy provides for special consideration of herbicide agent exposure for veterans whose duties placed them on or near the perimeters of certain designated Royal Thai Air Force Base in Thailand (RTAFBs) during the Vietnam Era. Specifically, if a veteran served in the U.S. Air Force in Thailand during the Vietnam era at U-Tapao, Ubon, Nakhon Phanom, Udorn, Takhli, Korat, or Don Muang RTAB as an Air Force security policeman, security patrol dog handler, or member of a security police squadron, or otherwise served near a base perimeter, as shown by the Veteran's military occupational specialty (MOS), daily work duties, performance evaluations, or other credible evidence, then herbicide agent exposure should be conceded on a facts-found or direct basis. See U.S. Dep't of Veterans Aff., Compensation and Pension Service Bulletin 3 (May 2010). In addition to service connection on a direct basis, service connection may also be granted for a disability that is proximately due to or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995). Turning to the evidence of record, there is no dispute that the Veteran has a current diagnosis of hypertension. Thus, the first element of service connection is established. The Veteran's service treatment records (STRs) are silent for any treatment, diagnoses, or complaints related to hypertension. The Veteran contends that his hypertension is related to herbicide agent exposure. Such exposure has been conceded based on his service in Thailand. See February 2015 rating decision. Accordingly, the second element of service connection also has been established. Turning to the third element, a causal nexus, the Board finds that this element has not been established. Pursuant to the Board's June 2019 remand, an etiology opinion was obtained in November 2019. The examiner provided a negative nexus opinion regarding direct service connection. In his rationale, he acknowledged the Veterans and Agent Orange: Update 11 and the study conducted by Cypel on which the update was based, but noted that while an association was found in those directly involved in spraying herbicide, it was not found in non-sprayers. He also noted that the Veteran was not in the Army Chemical Corp., the group of veterans that the study was based on. Regarding secondary service connection, the examiner also opined that it was less likely than not that the Veteran's hypertension was caused or aggravated by his service-connected diabetes because, while hypertension can be a long-term sequalae of poorly controlled diabetes, the Veteran's diabetes was diagnosed in near proximity to his hypertension, making it medically unlikely for diabetes to be causative for his hypertension. He also noted that the Veteran's VA renal exam in 2017 did not find renal insufficiency causative for hypertension. In its November 2020 remand, the Board determined that addendum opinions were needed to consider contentions raised by the Veteran and article excerpts submitted by the Veteran's representative subsequent to the November 2019 opinion. Pursuant to the November 2020 remand, new etiology opinions were obtained in March 2021. After a thorough review of the Veteran's STRs, post-service treatment records, and other evidence of record, the examiner opined that it was less likely than not that the Veteran's hypertension was incurred in, or caused by, his active service, to include his exposure to herbicide agents. In his rationale, the examiner noted that the Veteran's STRs did not contain any documented evidence of elevated blood pressure readings during his active service, and that his first elevated blood pressure reading did not occur until 1995. The examiner further noted that the Veteran's blood pressure readings in 1997 continued to be high and would have qualified him to be diagnosed with hypertension at that time. Regarding the Veteran's exposure to herbicide agents, the examiner considered the Veterans and Agent Orange: Update 11 but explained that any form of association is not the same or equal to causation or a causative nexus. He noted that the weight of peer reviewed medical literature clearly supports that standard/distinction. He also explained that there is no scientifically proven causative nexus between the Veteran's exposure to herbicide agents and development of his hypertension approximately 25 years after exposure. In reference to secondary service connection, the examiner opined that it was less likely than not that the Veteran's hypertension was caused or aggravated by his service-connected diabetes. Regarding causation, the examiner noted that the Veteran's fasting blood glucose was with normal range in 1997 and 2006. He explained that the evidence of record shows that the Veteran's hypertension first manifested in 1997, and therefore existed 10 years or more before his diabetes ever manifested or was diagnosed. Thus, the examiner concluded that the Veteran's diabetes did not cause his hypertension. The examiner also indicated that he considered the article excerpts submitted by the Veteran's representative, as requested by the November 2020 Board remand. Regarding aggravation, the examiner considered the medication changes the Veteran had with regards to hypertension but explained that anti-hypertension medication changes and adjustments are very common because everyone is different genetically to how he or she responds to the prescribed treatment. He further noted that medications are prescribed based on consideration of multiple factors. He also explained that there was nothing in the record to support the notion that the Veteran's hypertension was aggravated beyond its natural progression by his diabetes. To support his conclusion, the examiner pointed to the Veteran's June 2006 commercial driver's license (CDL) physical examination and June 2020 blood pressure reading and medication list and explained that despite being 14 years older and seven pounds heavier, his blood pressure's natural progression should be much higher and it would take more medication at stronger doses to control his hypertension if the hypertension was aggravated by his diabetes, but such was not the case. The examiner explained that three medications the Veteran is currently taking for his hypertension is essentially comparable in total strength with the medications he was taking in 2006. The Board finds the March 2021 opinions, supported by rationales based on an accurate medical history with clear conclusions and supporting data, are the most probative evidence of nexus in this case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). While the Veteran believes his hypertension is related to his herbicide agent exposure and/or secondary to his diabetes, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it involves internal disease processes and requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board acknowledges the Veteran's contention that service connection should be granted on a direct basis based on the evidence of a positive association between herbicide agent exposure and hypertension. See April 2021 correspondence. However, the March 2021 examiner considered such evidence but nonetheless concluded that the Veteran's hypertension was not related to such exposure. To the extent that the Veteran has contended that service connection should be granted on a presumptive basis because establishing a nexus for hypertension can be difficult when the condition manifests long after service or nexus evidence is unavailable, the Board notes that hypertension is not currently a condition presumptively related to herbicide agent exposure. See April 2021 correspondence. The Board also notes that the March 2021 examiner generally bases his negative secondary causation opinion on the fact that the Veteran's hypertension manifested prior to his diabetes. While the Board is mindful of Frost v. Shulkin, which held that a disability need not be service-connected or diagnosed at the time that a secondary disability is incurred, the Board finds that the current case is distinguishable from Frost. 29 Vet. App. 131, 138 (2017). Here, the examiner did not solely base his opinion on the fact that the Veteran's diabetes was diagnosed after his hypertension, but instead also based his opinion on the fact that the Veteran's diabetes did not manifest until years after the Veteran's hypertension manifested. Specifically, he indicated that the Veteran did not develop diabetes until sometime after his June 2006 CDL physical examination, as he noted that the Veteran's blood glucose was normal both in 1997 and 2006. Thus, the examiner concluded that the Veteran's diabetes could not have caused his hypertension where he did not develop diabetes until years after he developed hypertension. Accordingly, the Board finds that the March 2021 opinion is not inadequate pursuant to Frost. The Board also acknowledges the Veteran's contentions that he had symptoms of diabetes (i.e. glucose issues) prior to his official diagnosis and that his hypertension medication changes were indicative of aggravation by diabetes. However, as explained above, the March 2021 examiner reviewed the Veteran's treatment records and noted that the Veteran's blood glucose was within normal range in 1997 and at his 2006 CDL examination, which indicated that he did not have any manifestations of diabetes at that time. Additionally, the examiner considered the Veteran's medication changes but nonetheless concluded that they were not evidence of aggravation. The Board also acknowledges the March 2021 examiner's opinion that the Veteran's hypertension manifested in 1997 during his reserve service. However, such is not sufficient to grant service connection on a direct basis as a disability is only subject to compensation if it was incurred during a period of active military service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. The Board also has considered whether service connection for hypertension is warranted on a presumptive basis for chronic diseases. 38 C.F.R. § 3.309(a) However, the Veteran does not contend, and the evidence does not show, that he suffered from hypertension in and since service or, that his hypertension manifested to a compensable degree within a year of separation. Therefore, hypertension is not presumed to have been incurred in service. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In sum, the most competent and probative evidence shows that the Veteran's hypertension is not related to his exposure to herbicide agents or secondary to his service-connected diabetes. Accordingly, service connection for hypertension is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Mortimer, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.